Lovelady v Griffiths - [2018] WADC 180

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   LOVELADY -v- GRIFFITHS [2018] WADC 180
CORAM:   STAUDE DCJ
HEARD:   26 NOVEMBER 2018
DELIVERED          :   20 DECEMBER 2018
FILE NO/S:   APP GER 1 of 2018
BETWEEN:   CRAIG MATTHEW LOVELADY
Appellant
AND
JENNIFER DOROTHY GRIFFITHS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE POTTER
File Number             :   LMRO 6 of 2017

Catchwords:

Appeal - Restraining Orders Act 1997 - Appeal from magistrate's decision refusing costs upon the dismissal of a violence restraining order application - Whether right of appeal is provided by s 64 - Whether s 40(1)(a) of the Magistrates Court (Civil Proceedings) Act 2004 applies

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA)
Restraining Orders Act 1997 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr P G Giudice
Respondent	:	No appearance

Solicitors:

Appellant	:	George Giudice Law Chambers
Respondent	:	Not applicable

Case(s) referred to in decision(s):

Armstrong v Saxby [2016] WADC 87
Dey v Victorian Railways Commission (1949) 78 CLR 62
Goodwin v Phillips (1908) 7 CLR 1
Laurent v Fates [2015] WASCA 226
Mudie v Gainriver Pty Ltd (No 2) [2003] 32 Qd R 271
PAR v JLT [2015] WASC 362
Re Magistrate G Smith; Ex parte Ives [2010] WASC 249
Van der Feltz v Rispoli [2010] WADC 29

STAUDE DCJ:

Introduction

On 11 December 2017 in the Magistrates Court at Leeman, comprised of two Justices of the Peace, the respondent Mrs Griffiths obtained an interim violence restraining order against the appellant Mr Lovelady.
There is no transcript available of the hearing of the application at Leeman, but Mrs Griffiths' affidavit in support of her application stated that on 7 December 2017 at 7.30 am -
I was watering at Cliff Park, Greenhead, when I was approached by Mr Lovelady. He has had issues with the shire over work at the park. I had a bucket of plants to put in. Mr Lovelady took a photo of the plants and told me not to plant them. He was very aggressive and abusive to me, pointing his finger at me and shouting and swearing, telling me to leave. My husband was with me. I am not sure what would have happened if I was on my own. I am 73 years old. He is a large man in his 50s. … I am very scared and stressed over this incident.
Mr Lovelady objected to the order. The matter came to a final order hearing in the Magistrates Court at Geraldton on 17 April 2018 at which Mr Lovelady was represented by counsel.
The learned magistrate held that the evidence of Mrs Griffiths taken at its highest did not make out that the requirements for either a violence restraining order or a misconduct restraining order. His Honour held that her evidence did not disclose an act of personal violence by Mr Loveday, or indeed, show that he was likely to commit such an act in the future. In any event, the court was not persuaded that a violence restraining order should be made.
As to the alternative remedy, being a misconduct restraining order, his Honour found that even if Mr Loveday's conduct was intimidating or offensive, he was not satisfied that it would occur again, or that it would be appropriate in any event to make such an order.
Mr Lovelady applied for costs pursuant to s 69 of the Restraining Orders Act 1997 (ROA) which provides (relevantly):
(1)Subject to subsections (2) and (3) and the regulations, a court may make such orders as to costs as it considers appropriate.
(2)A court is not to order an applicant for a restraining order to pay costs to the respondent unless it considers the application was frivolous or vexatious.
The learned magistrate declined to award costs, stating (ts 41):
I have to be satisfied that the application was frivolous and/or vexatious. I don't think I can make those determinations at this point in time.

Grounds of appeal

The grounds are expressed as follows:
1.The magistrate erred in not considering that the circumstances of the case and the evidence of the applicant rendered the application for restraining frivolous and vexatious.
2.The magistrate erred in not providing reasons or sufficient reasons as to why he did not consider the application to be frivolous and vexatious.
3.The magistrate erred in not awarding costs to be paid by the applicant to the respondent.
The appeal notice cites s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) as the provision allowing the appeal to be brought.
The issues are whether there is a right of appeal from the magistrate's decision and, if so, whether the magistrate erred in the exercise of his discretion not to award costs.

Right to appeal

Mrs Griffiths elected not to take part in the appeal. The question of whether the appellant had a right of appeal was raised by the court. After hearing submissions with respect to the grounds of appeal, the court gave leave to the appellant to lodge written submissions on the jurisdictional issue.
In those submissions Mr Lovelady contends that s 40(1)(a) of the MCCPA permits a party a right of appeal from the Magistrates Court to the District Court in relation to any order made by the Magistrates Court in the course of proceedings in the case, as long as the party was not a party to a minor case.
Section 40(1) provides:
A party to a case that is not a minor case may appeal to the District Court against -
(a)any order made by the Magistrates Court in the course of proceedings in the case; or
(b)the judgment of the Magistrates Court in the case.
Section 3 defines 'case' to mean 'any proceedings in the court involving or in connection with the court's civil jurisdiction'. Section 5 provides 'the Magistrates Court's civil jurisdiction is set out in this Act'. Section 8 provides:
The court's civil jurisdiction includes any jurisdiction conferred on the court by a written law other than this act, other than jurisdiction conferred on the court as a court of summary jurisdiction.
However, the ROA makes specific provision for appeals. Section 64 provides (relevantly):
(1)A person aggrieved by the decision of a court -
(a)under section 21(1)(b) or 29(1)(b) to dismiss an application; or
(b)to do any of the following -
(i)make, vary or cancel a final order;
(ii)refuse to make, vary or cancel a final order;
(iii)make any other order in relation to a final order;
may appeal against that decision in accordance with this section.
(2)if the decision was made by the Magistrates Court, the appeal is to be made in accordance with Part 7 of the Magistrates Court (Civil Proceedings) Act 2004 unless subsection (6a)(a) applies.
Subsection (6a)(a) relates to a decision made by court hearing proceedings under the Family Court Act 1997 or the Family Law Act 1975 (Cth). It has no application to this case.
The words 'final order' are defined by s 3:
final order means any of the following —
(a)in relation to an FVRO, a conduct agreement order;
(b)in relation to a VRO or MRO, a consent order;
(c)a restraining order that becomes a final order under section 32;
(d)a restraining order made under section 40(3);
(e)a restraining order made at a final order hearing;
(f)a restraining order made under section 49(1)(b) to vary a final order, being a replacement or additional final order made under that section;
(g)a restraining order that is a final order under section 63(4a) or 63A(3);
Mr Lovelady submits that if s 64 provides the only right of appeal from a decision in a matter to which the ROA applies, then a decision to 'refuse … to make a final order' (subsection (1)(a)(ii)) should be construed to so as to include a refusal to make a costs order upon the refusal of a final order.
Mr Lovelady further submits, in effect, that the words 'make any other order in relation to a final order' in subsection (1)(a)(iii) should be construed such that a 'final order' means a final order application.

Is there is a right of appeal from a costs decision from a magistrate in relation to a restraining order application conferred by the general appeal provisions in s 40 of the MCCPA?

As s 64 of the ROA specifies the decisions from which an appeal lies in relation to a restraining order application, and further provides that if the decision was made by the Magistrates Court the appeal is to be made in accordance with pt 7 of the MCCPA, the legislative intention appears to be that the right of appeal is limited to those decisions.
Prior to its amendment in 2016 of s 64(1) provided:
(1)A person aggrieved by the decision of a court -
(a)under s 23(1)(b) or s 29(b) to dismiss an application; or
(b) in relation to a final order
may appeal against that decision in accordance with this section.
In its present form s 64 defines an appealable decision with even greater particularity: see [15] above.
In Laurent v Fates [2015] WASCA 226, the Court of Appeal (McLure P, Murphy JA) dealt with an appeal from a decision of this court dismissing the appellant's appeal from a decision of a magistrate to strike out the appellant's misconduct restraining order applications. The Court of Appeal held that while s 64(1) did not provide a right of appeal from a decision to strike out an application, it was 'arguable' that s 40 of the MCCPA permitted an appeal from any decision by a magistrate in relation to a restraining order application for which s 64 of the ROA did not provide: see [15], [53].
The Court of Appeal observed that as the ROA did not make any provision which permitted a magistrate to strike out an application for a misconduct restraining order, any such order would have had to have been made pursuant to the court's civil jurisdiction. The court considered that it may be 'arguable' that there is an implied power in the MCCPA to strike out an application for a misconduct restraining order as an abuse of process. The appeal was, nevertheless, dismissed, the court holding that no miscarriage of justice would occur by striking it out.
In other cases observations have been made that the specific provisions for appeal in the ROA exclude other appeal provisions. Hall J in Re Magistrate G Smith; Ex parte Ives [2010] WASC 249 [7] held that the legislature had provided a process for appealing restraining orders and must have intended that such process would be used in circumstances where it applies.
This approach was followed by Fiannaca J in PAR v JLT [2015] WASC 362 where his Honour dismissed an appeal on the basis that the Supreme Court did not have jurisdiction to hear an application for leave to appeal from a decision to make an interim violence restraining order.
In Armstrong v Saxby [2016] WADC 87 Gething DCJ held that the District Court had no jurisdiction to hear an appeal from a decision by a magistrate to dismiss an application for a violence restraining order (that was not an application under s 21(1)(b) or s 29(1)(b)). His Honour held that the plain language of s 64(1) meant that there was no right of appeal to the District Court from a decision of a magistrate pursuant to s 43A to refuse to set aside a dismissal, nor an application pursuant to s 42(1)(a), although his Honour did acknowledge that s 36 of Magistrates Court Act 2004 empowered a person aggrieved by a decision of the Magistrates Court to apply for judicial review.
Apropos the present case, the ROA can be seen to provide expressly for the making of costs orders, so that a decision to allow or refuse a costs order application would be an exercise of the civil jurisdiction conferred by the ROA itself. For this reason the question raised by Laurent v Fates does not arise.
Section 64 prescribes the decisions that can be appealed and the applicable procedure. The ROA was enacted before the MCCPA. Section 64 was amended as recently as two years ago: Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016. It is difficult to see that the legislature could have intended the general appeal provisions in the MCCPA to have any application to a decision in relation to a restraining order. The maxim is generalia specialibus non derogant. As O'Connor J observed in Goodwin v Phillips (1908) 7 CLR 1, 4:
The special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply.
See also the discussion in Pearce DC, and Geddes RS, Statutory Interpretation in Australia, LexisNexis Butterworths (8^th ed, 2014).
In my view as the application for costs upon the dismissal of the respondent's application may be seen to have been made pursuant s 69 of the ROA, the appellant's right to appeal is confined by s 64(1) which limits the decisions from which an appeal lies.
The words of s 64(1) bear their natural and ordinary meaning. Section 64(1)(b)(ii) refers to a decision of a court to refuse to make, vary or cancel a final order. A decision dismissing an application for costs is not such a decision, although it may be regarded as a decision to make an order in relation to a decision to refuse to make a final order.
Similarly, s 64(1)(b)(iii) refers to a decision to 'make any other order in relation to a final order'. That expression describes an order that is ancillary to a final order. In my view it comprehends a costs order in relation to a final order.
In this case, however, there was no final order. It follows that an order refusing an application for costs consequent upon the refusal to make a final order is not appealable. That result, in my view, does not lead to an absurdity, or to some repugnance or inconsistency with the rest of the section so as to require modification of the grammatical and ordinary sense of the words used.
The appellant's contentions, to be upheld, would require the court to add meaning to s 64(1) that is not given by the words used and that Parliament may not have intended.
Taking the purposive approach to interpretation (at common law and by application of s 18 of the Interpretation Act 1984), the court is unable to infer a legislative intent to create a right of appeal from a decision in relation to a refusal to make a final order. In that respect, I observe that the recent amendment of s 64 was made in the light of Laurent v Fates and PAR v JLT.
For the foregoing reasons I find that neither s 64(1) of the ROA nor the s 40 of the MCCPA affords a right of appeal from the decision complained of.

Observations on the merits

In fairness to the appellant, having heard submissions on the appeal, I would indicate that I am not persuaded that the learned magistrate erred in fact or law, or made any discretionary error, in holding implicitly that Mrs Griffiths' application was not frivolous or vexatious.
The onus of persuading the court lay on Mr Lovelady. The application for costs was put by counsel as follows (ts 41):
If this application is dismissed, there is an application for costs. So I - we did offer an apology to the applicant prior to court for swearing at her, and that we all walk away from this. And I asked that she try to get some legal advice about it. And I did have a conversation with the shire - the chief executive officer of the shire also about it and asked him to impress upon the applicant the risks involved here, and I put on notice as to it, your Honour. So I don't take it any further than that, sir.
No submissions were made to the effect that Mrs Griffiths' application was frivolous or vexatious. The implied basis for the costs application was that the application had no reasonable prospect of success.
The learned magistrate observed that he would have to be satisfied that the application was frivolous and/or vexatious in order to order costs. He was obviously not so satisfied.
While the expression 'I certainly don't think I can make the - those determinations at this point in time' may be seen as somewhat ambiguous, the test was correctly stated and in the magistrate's mind was not met.
In Van der Feltz v Rispoli [2010] WADC 29, Schoombee DCJ dealt with an appeal from a decision of a magistrate refusing to grant a misconduct restraining order and awarding costs against the appellant. The issue on the hearing of the appeal the costs order. Her Honour observed that as the appeal was by way of rehearing the appellant had to show that the magistrate made a legal, factual or discretionary error. Her Honour stated at [35]:
… It is not sufficient that the appellate court would have imposed a different order if it had been in the position of the Magistrate. There must have been some error made by the Magistrate in exercising his discretion. Such an error may be constituted by the Magistrate relying on extraneous or irrelevant matters, mistaking the facts or not taking into account some material consideration: House v The King (1936) 55 CLR 499 at 504‑505 ... If such an error has been made the appellate court may exercise its own discretion in substitution for the Magistrate's based on the material that was before the Magistrate.
Her Honour went onto examine the meaning of the words 'frivolous' or 'vexatious' citing authority for the proposition that they should be given their ordinary meaning, unfettered by their meaning in the very different context of striking out or staying proceedings for an abusive process: Mudie v Gainriver Pty Ltd (No 2) [2003] 32 Qd R 271 [35]. Her Honour observed in relation to that case that something more than a lack of success had to be shown before proceedings could be said to be frivolous or vexatious.
Her Honour also cited Dey v Victorian Railways Commission (1949) 78 CLR 62, 91 for the proposition that a claim could be described as a frivolous or vexatious when it was groundless and had been an abuse of process in that the court's time and resources had been employed in exposing a groundless basis.
On the evidence before the learned magistrate, the appellant had acted in an offensive manner towards the respondent. Indeed, it was conceded on behalf of Mr Lovelady that he had apologised for swearing at Mrs Griffiths. In my view, the summary dismissal of the respondent's application notwithstanding, the learned magistrate did not err in the exercise of his discretion not to award costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Staude
19 DECEMBER 2018